In popular portrayals of sexual harassment such as the hit TV series “Mad Men,” the perpetrators tend to be leering bosses. While sexual harassment certainly is a problem in corporate environments, the office might not always be the likeliest setting for this behavior. In fact, with their late hours, close quarters, free-flowing alcohol and mix of older patrons and younger staff, restaurants bring together a number of risk factors that arguably make the occurrence of sexual harassment more likely. This is an important consideration for independent restaurateurs and chains in the Northeast, where states such as Massachusetts have enacted stringent laws on sexual harassment. While it is true that isolated incidents such as playful flirting rarely end up in court, restaurants should make every effort to avoid getting embroiled in these suits. They also need to be well-prepared to defend themselves against potential sexual harassment claims.
The first step is to be cognizant of how sexual harassment is defined by the state or states in which the business operates. Massachusetts, for example, recognizes two different categories. It defines quid pro quo harassment as situations where acquiescence to or rejection of sexual advances or sexual conduct are made a condition of employment or are used as a basis for employment decisions. Hostile work environments, as defined by the state, are created whenever verbal or physical conduct of a sexual nature unreasonably interferes with an individual’s job performance.
Next, managers and employees should educate themselves on what the law requires, with a view toward reducing risk. For example, these cases often hinge on whether the plaintiff regarded the comments, remarks, jokes or physical overtures as “unwelcome.” Importantly, however, just because an employee might have joked with the alleged harasser, this does not mean the offending person’s entire course of conduct was welcomed. An employee need not object to harassing conduct for that conduct to be deemed illegal. The bar for employers here can be high: In Massachusetts, employers are held liable for sexual harassment of employees by managers and supervisors regardless of whether the employer was even aware of the conduct. Likewise, they can be held liable if a restaurant server makes sexually charged remarks to another server, or if a vendor sexually harasses employees.
Employers should immediately investigate any and all sexual harassment complaints. In addition to disciplining those responsible, they should pay close attention to their states’ particular requirements for employers. For example, how often do written guidelines need to be distributed to new hires and other employees? Exactly what should these guidelines contain? Employers should carefully document all of their anti-harassment efforts. Even though some states do not require training on sexual harassment, restaurant operators should consider doing this as a best practice. After all, courts may likely have more sympathy for those who have been proactive on the issue. Popular portrayals to the contrary, major corporations work tirelessly to keep sexual harassment out of their offices and boardrooms. Restaurateurs have every incentive to do the same.